The state calls its own violence law, but that of the individual, crime.
– Max Stirner, German philosopher
By Dr Navin C Naidu
William Blackstone’s (1723-1780) Commentaries on the Laws of England advocated that “the most universal and effectual way of discovering the true meaning of law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceased, the law itself ought likewise to cease with it.”
The reason and spirit of the laws can become unpleasantly surprising and strange when the reason for the law is not on all fours with the spirit behind it. Stupidity accompanied by cupidity becomes clear when some dullard explains away reason and spirit through subjective statutory interpretation.
The judicial and legal service of Malaysia, an enduring oddity, is included under “Public Services” in Article 132 (1)(b) FC. Thereafter there is a whole lot of constitutional blather until Article 132(3)(c) where it says the “The public service shall not be taken to comprise the office of judge of the Federal Court, the Court of Appeal or a High Court”!
Article 132(2)(a) uncomfortably declares that “the public service shall not be taken to comprise the office of any member of the administration in the Federation or a State.” That would mean all ministers, deputy ministers, political secretaries, directors-general of government departments are not public servants.
Article 132(2)(b) is convincingly notorious with the constitutional guarantee that the office of president, speaker, deputy president, deputy speaker or member of either House of Parliament or of the Legislative Assembly of a State is not a public service function.
The constitutional quiddity then begs the question as to who the lawmakers, ministers and the government servants, etc. in the “public services” work for. Shouldn’t they, as government servants, reflect the expectations of the rakyat?
The answer came from Justices Tengku Maimun and Nalini, Court of Appeal president Tan Sri Ahmad Ma’arop, Chief Judge of Malaya Tan Sri Azahar Mohamed, and Federal Court judges Justices Rohana Yusof and Datuk Mohd Zawawi Mohd Salleh who unanimously decided and declared in November 2019 that the prime minister and ministers are public officers who can be sued for malfeasance.
So, in essence Article 132 FC became a constitutional pariah in the context of a common law definition of “public officer”. Section 2(2) and Section 5 of the Government Proceedings Act 1956 (Act 359) make it crystal clear that a minister is a “public officer” who may sue and be sued.
There subsists a subtle suggestion by formalistic legal scholars that the Muhyiddin government is altogether a legitimate quiddity given the ambit of Article 132(2A) FC which mandates the public officers’ appointment during the pleasure of the Yang di-Pertuan Agong!
Another Reid Commission omission is clumsily proclaimed in Article 118 FC which allows an election to the House of Representatives or to the Legislative Assembly of a State to be petitioned in a High Court proceeding.
Article 72(1) FC which prohibits any court action concerning the validity of proceedings in a State Legislative Assembly renders Article 118 FC an oddity. Aristotle eloquently observed that “even when laws have been written down, they ought not always to remain unaltered”.
And this brings us to the much debated and discussed issue of law reform and constitutional amendment that seems to excite and enthuse some experts who really think they can set the compass right for the nation to steer and move in a people-centric direction.
Much of the dubious debate is centred around the death penalty. Death and taxes cannot be avoided whether by natural law or statutory law, so what’s the big deal? Syllogistically, public officers who have been found guilty of bribe-taking must be sentenced to death for murdering the public trust.
Malaysia has sufficient laws that prescribe capital punishment in accordance with Article 5(1) FC. Here, the supreme law of the land reflects the true reason and spirit behind the death penalty. What’s the fuss?
Law reform to abolish capital punishment must necessarily include repealing Article 5(1) FC. When the reason ceases, so should the law. So, if drug trafficking, murder, offences against our King and possession of firearms ceases, so should the law be proscribing such crimes?
I suppose our experts in the law in the thickets and brambles of subjective statutory interpretation may have something to say on this to create more quiddities and oddities as an enduring flaw in the law.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
